Sec.

161.30 Withdrawal and restoration of Superintendent's authority.

161.31 Appeals.

AUTHORITY: The provisions of this Part 161 issued under R.S. 161, sec. 1, 30 Stat. 941, sec. 1, 32 Stat. 266, sec. 1, 33 Stat. 359, sec. 4, 37 Stat. 194, sec. 6, 62 Stat. 18; 5 U.S.C. 22, 25 U.S.C. 328, unless otherwise noted.

SOURCE: The provisions of this Part 161 appear at 22 F.R. 10581, Dec. 24, 1957, unless otherwise noted.

§ 161.1

Definitions.

As used in this part:

(a) "Secretary" means Secretary of the Interior or his duly authorized representative.

(b) "Commissioner" means Commissioner of Indian Affairs or his duly authorized representative.

(c) "Area Director" means the officer in charge of an Area Office of the Bureau of Indian Affairs or his duly authorized representative.

(d) "Superintendent" means the superintendent or other officer in charge of an Indian Agency, School, Hospital, or other field unit of the Bureau of Indian Affairs.

(e) "Indians" include (1) Indians, (2) Eskimos, or (3) Aleuts.

(f) "Tribe" means a nation, tribe, band, pueblo, community, or other group of Indians residing on a reservation, rancheria, or other reserve within the continental United States or Alaska.

(g) "Tribal Council" means the official council, business committee, or other body, or the governor or other individual, authorized to represent a tribe in consenting to the granting of the rights-ofway provided for in this part.

(h) "Restricted lands" means (1) lands or interests in lands held by the United States in trust for a tribe; (2) lands or interests in lands held by a tribe in restricted fee or Indian title, including Pueblo lands; (3) lands or interests in lands held by the United States in trust for individual Indians; (4) lands or interests in lands held by individual Indians subject to restrictions against alienation; or (5) other lands acquired or set aside by the United States for the use and benefit of Indians

(1) "Damages" include the compensation, if any, due the landowner for a right-of-way.

(a) Except as indicated in paragraph (b) of this section, the regulations in this part prescribe the procedures, terms, and conditions under which rights-ofway over and across restricted lands may be granted.

NOTE: For irrigation rights-of-way, see sec. 18, 26 Stat. 1101, as amended, 34 Stat. 375; 43 U. 8. C. 946.

(b) The regulations in this part do not cover the granting of rights-of-way for primary hydroelectric transmission lines over and across tribal lands. Applications for such rights-of-way must be filed with the Federal Power Commission. § 161.3 Consent of landowners.

(a) No right-of-way shall be granted over and across any restricted lands belonging to a tribe, nor shall any permission to survey or to commence construction be issued with respect to any such lands, without the prior written consent of the tribal council.

(b) Except as provided in paragraph (c) of this section, no right-of-way shall be granted over and across any individually owned restricted lands, nor shall any permission to survey or to commence construction be issued with respect to any such lands, without the prior written consent of the owner or owners of such lands and the approval of the Superintendent.

(c) The Superintendent may issue permission to survey or to commence construction with respect to, and he may grant rights-of-way over and across, restricted lands of individual Indians without the consent of the individual Indian owners when (1) the individual owner of the land or of an interest therein is a minor or a person non compos mentis, and the Superintendent finds that such grant will cause no substantial injury to the land or the owner, which cannot be adequately compensated for by monetary damages; (2) the land is owned by more than one person, and the owners or owner of a majority of the interests therein consent to the grant; (3) the whereabouts of the owner of the land or an interest therein are unknown, and the owners or owner of any interests therein whose whereabouts are known, or a majority thereof, consent to the grant; (4) the heirs or devisees of a deceased owner of the land or an interest therein have not been determined, and the Superin

tendent finds that the grant will cause no substantial injury to the land or any owner thereof; (5) the owners of interests in the land are so numerous that the Superintendent finds it would be impracticable to obtain their consent, and also finds that the grant will cause no substantial injury to the land or any owner thereof.

§ 161.4 Permission to survey.

Anyone desiring to obtain permission to survey a right-of-way upon and across restricted lands must file a written application therefor with the Superintendent. The application shall adequately describe the proposed project, and it shall be accompanied by the written consent of the landowners as required by § 161.3, by satisfactory evidence of the good faith and financial responsibility of the applicant, and by a check or money order of sufficient amount to cover double the estimated damages which may be sustained as a result of the survey. With the approval of the Superintendent, a surety bond may be substituted in lieu of a check or money order accompanying an application. Such bond may serve as surety to accompany other applications by the same applicant made under this section, if adequate in amount. An application filed by a corporation must be accompanied by proof of corporate existence and of compliance with State laws entitling the applicant to operate in the State in which the restricted land is situated. An application filed by an unincorporated partnership or association must be accompanied by a certified copy of the articles of partnership or association, or if there be none, this fact must be stated over the signature of each member of the partnership or association. the applicant has previously filed with the Department an application accompanied by the evidence required in this section, a reference to the date and place of such filing, accompanied by proof of current financial responsibility and good faith, will be sufficient. Upon receipt of an application made in compliance with the regulations of this part, the Superintendent may grant the applicant written permission to survey.

[24 F.R. 10676, Dec. 24, 1959]

If

work on a right-of-way may be granted by the Superintendent at the same time or after permit to survey is issued and before full compliance is made with the regulations in this part, provided the applicant deposits with the Superintendent in advance such amount, in addition to that deposited in accordance with § 161.4, or increases the surety bond in such amount, as will be sufficient to equal twice the estimated damages which may result from the survey and construction, and agrees in writing to comply promptly with the regulations in this part. The amount of the deposit, if the applicant is an agency of the Federal or of a State Government, will be a sum to cover only the estimated damages whenever it be shown to the satisfaction of the Superintendent that the funds of the applicant are not available for the deposit of the greater amount. Each deposit shall be held in a "special deposit" account until the actual damages have been determined and the application for the right-of-way has been approved. [24 F.R. 10676, Dec. 24, 1959]

§ 161.6 Disposition of deposit.

Except as provided in this section, all that part of the deposit required by § 161.5 which is not required for the payment of damages due the landowners shall be refunded to the applicant upon satisfactory completion of the project and compliance with the requirements of § 161.5. Whenever by reason of unnecessary delay or otherwise the applicant fails to show good faith or to exercise due diligence in complying with the regulations of this part, the Superintendent shall, after giving the applicant fifteen days' written notice to show cause why the construction permit should not be rescinded and the application for right-of-way rejected, submit a full report on the matter to the Area Director. If it appears to the satisfaction of the Area Director that the applicant has failed to show good faith or to exercise due diligence in complying with the law and the regulations of this part, the Area Director may rescind the construction permit and reject the application, and notify the applicant of such action and that the entire amount of the applicant's deposit will be paid to the interested Indians as liquidated damages after 30 days from the receipt of such notice unless the applicant files a written notice of appeal from such action pursuant to § 161.31, in which event the

deposit shall be held pending the final determination of the appeal.

§ 161.7

Application for right-of-way.

After a survey has been authorized and completed, formal application, in duplicate, for the right-of-way, if desired, shall be filed promptly with the Superintendent. The application shall cite the statute or statutes under which it is filed and the width and length of the desired right-of-way, and shall be accompanied by a duly executed stipulation expressly agreeing to the following:

(a) To construct and maintain the right-of-way in a workmanlike manner.

(b) To pay promptly all damages, in addition to the deposit made pursuant to 161.5, determined by the Superintendent to be due the landowners on account of the construction and maintenance of the right-of-way.

(c) To indemnify the landowners against any liability for damages to life or property arising from the occupancy or use of the lands by the applicant.

(d) To restore the lands as nearly as may be possible to their original condition upon the completion of construction.

(e) That the applicant will not interfere with the use of the lands by or under authority of the landowners for any purpose not inconsistent with the primary purpose for which the rightof-way was granted.

(a) Each application for a right-ofway must be accompanied by maps of definite location consisting of an original on linen tracing or other permanent and reproducible material and three reproductions thereof. Two originals shall be filed if the applicant desires the return of an original showing the approved right-of-way. The field notes shall accompany the application, as provided in § 161.9. The width of the right-of-way shall be clearly shown on the original map.

(b) A separate map shall be filed for each section of 20 miles of right-of-way, but the map of the last section may include any excess of 10 miles or less.

(c) The scale of maps showing the line of route normally should be 2,000 feet to an inch. The maps may, however, be drawn to a larger scale when necessary and when an increase in scale cannot be avoided through the use of separate field notes, but the scale must not be increased

to such extent as to make the maps too cumbersome for convenient handling and filing.

(d) The map shall show the name of the allottee and the allotment number of each tract of allotted land, and shall clearly designate each tract of tribal land affected, together with the sections, townships, and ranges in which the lands crossed by the right-of-way are situated. [22 F.R. 10581, Dec. 24, 1957, as amended at 25 F.R. 7979, Aug. 18, 1960]

§ 161.9 Field notes.

Field notes of the survey shall appear along the line indicating the right-ofway on the map, unless the map would be too crowded thereby to be easily legible, in which event the field notes may be filed separately on linen tracing in such form that they may be folded readily for filing. Where field notes are placed on separate linen tracing, it will be necessary to place on the map only a sufficient number of station numbers so as to make it convenient to follow the field notes. The field notes shall be typewritten. Whether endorsed on the map or filed separately, the field notes shall be sufficiently complete so as to permit the line indicating the right-of-way to be readily retraced on the ground from the notes. They shall show whether the line was run on true or magnetic bearings, and, in the latter case, the variation of the needle and date of determination must be stated. One or more bearings (or angular connections with public survey lines) must be given. The 10-mile sections must be indicated and numbered on all lines of road submitted.

§ 161.10 Public survey.

(a) The termini of the line of route shall be fixed by reference of course and distance to the nearest existing corner of the public survey. The map, as well as the engineer's affidavit and the certificate, shall show these connections.

(b) When either terminal of the line of route is upon unsurveyed land, it must be connected by traverse with an established corner of the public survey, if not more than 6 miles distant from it, and the single bearing and distance from the terminal point to the corner computed and noted on the map, in the engineer's affidavit, and in the certificate. The notes and all data for the computation of the traverse must be given.

must be given an accurate description of the mark and full data concerning the traverse, and the engineer's affidavit and the certificate on the map must state the connections.

§ 161.12 Township and section lines.

Whenever the line of survey crosses a township or section line of the public survey, the distance to the nearest existing corner shall be noted. The map shall show these distances and the station numbers at the points of intersection. The field notes shall show these distances and station numbers.

§ 161.13 Affidavit and certificate.

(a) There shall be subscribed on the map of definite location an affidavit executed by the engineer who made the survey and a certificate executed by the applicant, both certifying to the accuracy of the survey and map and both designating by termini and length, in miles and decimals, the line of route for which the right of way application is made.

(b) Maps covering roads built by the Bureau of Indian Affairs which are to be transferred to a county or state government shall contain an affidavit as to the accuracy of the survey, executed by the Bureau highway engineer in charge of road construction, and a certificate by the state or county engineer or other authorized state or county officer accepting the right of way and stating that he is satisfied as to the accuracy of the survey and map.

shall prepare separate schedules for the individual lands and for the tribal lands traversed by the right-of-way described in the application. The individual land schedule shall identify thereon the allotment number and the name of the allottee of each forty-acre tract or part of each legal subdivision thereof, and shall set forth in separate columns the acreage taken from each subdivision, the value per acre, the damages to improvements or adjoining land or other property, and the total amount of damages due each land owner. Except for the allotment numbers and the names of the allottees whose lands are involved, the schedule for tribal lands shall contain like information. The Superintendent shall furnish the applicant a copy of the schedules, together with the latest known addresses of the owners.

Upon receipt of the schedule of damages, the applicant must deposit with the Superintendent the total amount of damages as shown on the schedules, less any deposit previously made under §§ 161.4 and 161.5 The amount so deposited shall be held in a "special deposit" account for distribution, upon the approval of the application, to or for the account of the owners.

§ 161.16 Action on application.

Upon satisfactory compliance with the regulations in this part, the Superintendent is authorized to approve the application by endorsing his approval on the map of definite location. Upon approval of the application, the Superintendent shall promptly notify the applicant, and thereafter the applicant may proceed with the construction work, if such permission has not been obtained under § 161.5. The approved original right-ofway map bearing the written signature of the Superintendent shall be transmitted to the Commissioner. [25 F.R. 7979, Aug. 18, 1960]

§ 161.17 Affidavit of completion.

Upon the completion of the construction of any right-of-way, the applicant shall promptly file with the Superintendent an affidavit of completion, in duplicate, executed by the engineer and certified by the applicant. The Superintendent shall transmit one copy of the affidavit to the Commissioner for filling.

§ 161.18 Change of location.

If any change from the location shown upon the approved maps is found to be necessary on account of engineering difficulties or otherwise, amended maps and field notes of the new location shall be filed, and a right-of-way for such new route or location shall be subject to approval, the ascertainment of damages, and the payment thereof, in all respects as in the case of the original location, before construction work may proceed upon such new right-of-way, unless permission has been obtained in accordance with 161.5. § 161.19

Tenure of approved right-of

way grants.

All rights-of-way granted under the regulations in this part shall be in the nature of easements or permits for the periods stated therein. They are terminable upon abandonment or discontinuance of the use for which granted. Rights-of-way for railroads, telephone lines, telegraph lines, public highways, and water control projects including but not limited to dams, reservoirs, flowage easements, ditches and canals shall be without limitation as to term of years. Rights-of-way for all other purposes shall be for a period of not to exceed 50 years, as fixed by the Secretary and stated in the grant, and shall be subject to renewal for a like term upon compliance with the applicable regulations. [25 F.R. 7979, Aug. 18, 1960]

§ 161.20 Renewal of right-of-way grants.

On or before the termination date of

any right-of-way heretofore or hereafter granted for a limited term of years, an application may be submitted for a renewal of the grant. If the renewal involves no change in the location or status of the original right-ofway grant, the applicant may file with his application a certificate under oath setting out this fact, and the Superintendent, with the consent of the Indians, may thereupon extend the grant for a like term of years, upon the payment of compensation in the amount fixed and determined by the Superintendent. If any change in the size, type, or location of the right-of-way is involved, the application for renewal shall be treated and handled as in the case of an original application for a right-of-way.

(a) An agreement shall be executed by and between the landowner or a legally authorized occupant or user of the land and the applicant before any work by the applicant may be undertaken to construct a service line across such land. Such a service line shall be limited in the case of power lines to a voltage of 7.5 kv or less except lines to serve irrigation pumps which shall be limited to a voltage not to exceed 14.5 kv. Service lines shall be for the sole purpose of supplying the individual owners or authorized occupants or users of land including schools and churches with telephone, water, electric power, gas, or other utilities for domestic and agricultural uses by such owners, occupants or users of the land.

(b) A similar agreement to that required in paragraph (a) of this section shall be executed by the tribe or legally authorized occupant or user of tribal land and the applicant before any work by the applicant may be undertaken on the land for the construction of a service line across such tribal land. Such a service line shall be for the sole purpose of supplying such occupants or users of such tribal land with any of the services dealt with in paragraph (a) of this section. No agreement under this paragraph shall be valid unless its execution shall have been duly authorized in advance of construction by the governing body of the Indian tribe whose land is affected.

(c) In order to encourage the use of telephone, water, electric power, gas or other utilities and facilitate the extension of these modern conveniences to sparsely-settled Indian areas without undue costs the agreement referred to in paragraph (a) of this section shall only be required to include or have appended thereto, a plat or diagram showing with particularity the location, size, and extent of the line. When the plat or diagram is placed on a separate sheet it shall bear the signature of the parties. In case of tribal land, the agreement shall be accompanied by a certified copy of the tribal authorization.

(d) An executed copy of the agreement, together with a plat or diagram, and in the case of tribal land, an authenticated copy of the tribal authorization shall be filed with the superintendent of the reservation on which the service line is to be built within 30 days after the date of its execution. Failure